Governing towards Renewable Energy in the EU: Competences, Instruments, and Procedures
| Author | Marjan Peeters |
| DOI | 10.1177/1023263X1402100103 |
| Published date | 01 March 2014 |
| Date | 01 March 2014 |
| Subject Matter | Article |
21 MJ 1 (2014) 39
GOVERNING TOWARDS RENEWABLE
ENERGY IN THE EU: COMPETENCES,
INSTRUMENTS, AND PROCEDURES
M P*
ABSTRACT
is contribution maps new questions and explores potential problems in EU renewable
energy law, focusing on competences, regulatory instruments and administrative
procedures. e transition towards renewable energy concerns a major transformation
of society, which cannot be done on a voluntary basis, and for which law, with all its
complexities, has to play a crucial role. Within the EU, the need to establish renewable
energy is a legally binding task for which a s pecial legislative framework has been adopted
on the basis of the environmental competence. In order to reach the 20% mark for
renewable energy by 2020, dramatic action has to be conducted by Member States, and
several overlaps between the EU regulatory climate and energy instruments complicate
the implementation of the legislative f ramework further. EU renewable energy law is likely
to be a tempestuous eld of law with an increasing number of court cases, particularly
concerning actions brought by citizens against renewable energy projects. Finally, for
the period a er 2020, there will be a discussion of which TFEU article could serve as the
correct legal basis for any further renewable energy commitments, particularly in view of
the special (but limited) energ y competence introduced by the Lisbon Treaty.
Keywords: administrative procedures; EU energy competence; Renewable Energy
(Directive); regulatory instruments
* Professor of Environmental Policy a nd Law, Maastricht University, e Netherlands, and
International Guest Researcher 2012–2014, Leuphana University, Germany. Email: Marjan.peeters@
maastrichtuniversity.nl. e resea rch for this article w as concluded on 31August 2013.
Marjan Peeters
40 21 MJ 1 (2014)
§1. INTRODUC TION
Within the EU, the need to establish renewable energy has been made a legally
enforceable task for Member States. e core aim is the 2020 target to achieve 20% of
renewable energy out of the total energ y consumption in the EU. is legal commitment,
established by EU Direc tive 2009/28/EC, imposes on each Member State a speci c target
for renewable energy consumption in 2020.1 e di erential national t argets result from
political decision-making at the EU level and are based on the various starting points
and potentials of Member States, such as the existing level of energy from renewable
sources and the national energy mix.2 In order to comply with the renewable energy
target, national governments have to develop policies and related legal frameworks
which will lead to a su cient increase in renew able energy production and consumption
by private operators and citizens.
e scope of the Directive concerns energy used for the electricity generation and
energy used for cooling a nd heating. Renewable energy is understood to be energy f rom
renewable non-fossil sources such as wi nd, solar, biomass and geothermal power.3 Given
the requirement for a major transition towards more renewable energy in a relatively
short time fra me, there are di cult ies surrounding the development of optimal support
mechanisms. ere a re also o en con icting stakes with regard to the establishment of
concrete renewable energy activities – like wind turbine and hydropower projects. EU
renewable energy law is thus likely to be a tempe stuous eld of law in the per iod leading
up to 2020.4 Various legal con icts may arise when Member States ca rry out their legal
duty to comply with the renewable energy obligation for 2020 seriously and hence sta rt
to intervene and steer society in order to reach the renewable energy targets. On the
other hand, if they do not develop adequate nat ional policies, the European Comm ission
can start i nfringement procedures: this can lead to enforcement decisions issued by the
Court of Justice of the Eu ropean Union, and nancial consequences for a non-compliant
Member State. 5
is contribution examines some core legal challenges for compliance with the
EU’s 20% renewable energy target. Section 2 begins with a discussion of the politica lly
sensitive distribution of legislative powers in the energy law sector between t he EU and
its Member States, and points out potential f uture legal con icts as to the proper basis for
renewable energy legislation. Section 3 analyses the complex mi x of climate and energy
1 Directive 20 09/28/EC of the Europe an Parliament a nd of the Council of 23April 2 009 on the promotion
of the use of energy f rom renewable sources, [2009] OJ L 140/16, further referred to a s Renewable
Energy Direc tive (RED); see Artic le3 and Annex I for the di erentiated targets for Member St ates.
2 See the preamble to t he Renewable Energy Direc tive, para. 15.
3 Article2(a) of the Renewable E nergy Directive.
4 See, for an impression of the additional e orts that according to the Commission are stil l needed:
European Commission, e Renewable Energy Progress Report, COM(2013) 175 nal, Bru ssels
27March 2013.
5 Article26 0 TFEU.
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